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Bracing for Bakken

Shell vs Skagit in Superior Court

Tuesday, May 12, 2015

Someone—a male voice from the back of the room—shouted, “Leave it in the ground!”

The interrupter, unidentified, was the only one to raise his voice through a cool May evening with a hot agenda, in a packed city council chamber. For a bunch of citizens worried about trains freighting explosive Bakken crude oil across the Skagit Valley, the crowd seemed rather subdued. They may not have liked what they heard, at the Anacortes oil-by-rail forum, but they were Skagit Valley nice about it.

Congressman Rick Larsen and a panel representing oil, railroad, fire and police and environmental agencies, quietly answered written questions handed up from the audience, sorted by Anacortes Council member Liz Lovelett and read to the panel by her fellow Council member Ryan Walters. Lovelett and Walters organized the forum in hopes of increasing the community’s knowledge about the threat of derailment, explosion, fire and water pollution and what, if anything, can be done about it.

The panel’s answers tended to propound the obvious―yes, there’s a danger and it will increase as the train trips increase; we need to prepare for a cataclysm that’s unlikely to happen; there’s a need for more money, equipment and manpower to cope with potential emergencies. No, we don’t have a plan to counter a spill into the river above the intakes that supply drinking water, but we will work closely with local agencies when the crisis arrives.

And no, we can’t stop Burlington Northern from hauling oil to the refineries. Larsen explained that railroads designated as common carriers are allowed and required to carry whatever a shipper wishes to ship.

Federal authorities can require safer tank cars for Bakken crude, and have done it. The safer cars blew up, along with the old models.

States of origin can require oil producers to stabilize the explosive oil before putting it on the train. North Dakota did so. On the same day as the Anacortes meeting, the newly stabilized oil blew up before it got out of the state.

It was the tenth oil train spectacle the Bakken crude has fueled in the United States and Canada since July 6, 2013. That’s the day an unattended oil train rolled backward down the track and blew up in Lac Megantic, Quebec, killing 47 people.

It’s the date on which those who call themselves “crude activists” juiced up their organizing work, to defend against the small but growing likelihood of a ghastly calamity, and to campaign for limits on oil-by-rail.

A Superior Court hearing in Mount Vernon on May 21 will begin testing the boundaries of citizens—organized as a local government—to influence private, corporate actions. Judge Michael Rickert will hear a lawsuit brought by Shell Oil against Skagit County’s Hearing Examiner and five environmental organizations, who wish to have Shell’s project wrung through an Environmental Impact Study. Shell is suing to block the study.

The company announced plans more than a year ago to build a rail set-up at its Anacortes refinery that would allow it to receive Bakken crude, arriving by way of Conway, Mount Vernon, Burlington, Edison, and the Swinomish Reservation. The company would add its own rails to the Burlington Northern line at the refinery, bring in one 102-tank car train per day—about 60,000 barrels—and build a system for moving the oil from the tank cars to the refinery.

Skagit County’s Planning and Development Department found no problem with issuing a permit for the project, based on a standard environmental checklist. The planners issued a “Mitigated Declaration of Non-significance” in August of 2014, as they had earlier for a similar facility at the Tesoro refinery next door to Shell.

The environmental groups—RE Sources for Sustainable Communities, Forest Ethics, the Washington Environmental Council, Evergreen Islands, and Friends of the San Juans—appealed the MDNS to the County Hearing Examiner. They argued that increased knowledge about the Bakken crude’s tendency to blow sky-high argues for more inquiry into the need for special protections.

Hearing Examiner Wick Dufford ruled that the environmental groups were right, there is indeed a threat to the environment and to public health and safety from the increased tonnage to be shipped through the Valley. Dufford told County Planning to prepare for an intensive EIS, one that might include the cumulative threats of increased oil train traffic at the two refineries, reaching beyond the boundaries of the oil company site.

Shell Oil filed suit in March, to block the study. A full-blown Environmental Impact Study would cost the company millions and delay its construction permit by a year, maybe two. The company claims the county is discriminating against Shell, since no EIS was imposed on Tesoro. Shell is not without community support around Anacortes. The company provides jobs for about 750 people, in a community with little heavy industry other than the refineries.

Shell general manager Tom Rizzo said in a statement that “Shell is committed to safe and modern rail operations and to the communities of Skagit County with whom we have enjoyed a long and close relationship.”

The lawsuit claims the Hearing Examiner overstepped his authority in ordering the environmental study. Oil-by-rail is federal turf, not county, the Shell complaint says; only the federal government can regulate rail traffic.

County government is caught in the middle, according to Will Honea, Skagit County’s deputy prosecutor for civil cases.

“There’s really only two sides to this issue,” Honea told the Skagit Valley Herald. “This is between the environmental organizations and Shell, and all parties are fully capable of representing themselves.”

Still, Skagit County has joined the five environmental groups in a motion to dismiss the oil company’s complaint. That’s the motion Judge Rickert will consider on May 21.

“Shell is jumping the gun,” says Jan Hasselman, the Earthjustice attorney who represents the EIS-backers. “Skagit County has not yet decided what the EIS will cover. That’s part of a formal scoping process that has yet to occur. Shell is suing over a conclusion that has not been reached.”

“The oil company’s not a railroad,” Hasselman told Cascadia Weekly. “But they’re saying we can’t study the impact of their new facility because it might be rail-related.

“Such a restriction would keep the county from studying a lot of important issues.

Suppose it seems prudent to exclude new school buildings within a thousand yards from the railroad, given the potential for fire and explosions. If county planners wanted to study that idea, would they be stopped because there’s a railroad involved?” he reasoned.

Coincidentally, the Mount Vernon School District, on the same night as the Anacortes forum, adopted a resolution of concern over the Bakken crude oil cars rolling through the district and Skagit County.

“The Board believes the transportation of crude oil using current rail technology poses a threat to the health, safety and welfare of its students, staff and community,” school board representatives asserted.

Interesting parallels develop, between the Skagit Valley fight and the one that surrounds the Gateway Pacific coal terminal at Cherry Point.

Northwest Jobs Alliance, a public and political relations organization formed to back the coal terminal, has submitted a letter supporting Shell’s oil plan.

“People seeking to deindustrialize the economy” are bent on requiring a full EIS every time a company wants to change its operation, the letter says.

There are other tenuous coincidences. As Shell Oil sues to stop the Skagit County EIS, the states of Montana and Wyoming threaten, separately, to sue Washington State. They object to a study of the environmental impacts of shipping coal from the high plains to Cherry Point, and exporting it to Asia.

The coal states, as does Shell Oil, maintain that certain environmental studies invade federal jurisdiction, reaching into interstate commerce, a field reserved for Congress and the federal regulators.

Hasselman agrees there are similarities between the oil and coal fights, but says the differences are stark.

“The Shell Oil suit is the real thing,” he said. “They’re in court.”

“That thing with the coal states, those are not cases. That’s just chest-beating, trying to intimidate the people of Washington from learning what we need to know.”

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